The UN Committee on the Elimination of Discrimination against Women found that the Netherlands’ temporary failure to provide an adequate maternity leave scheme between 2004 and 2008 involved a breach of its obligations under the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).

The case raises interesting questions about the minimum standard of maternity leave required at international law; the ability of a state to meet its human rights obligations through the private sector; and the relationship between maternity leave and gender discrimination laws.

Facts

The applicants were six self-employed women from the Netherlands, who gave birth between June 2005 and March 2006. Prior to 1 August 2004, the Netherlands had a scheme of mandatory public incapacity insurance for self-employed workers. Part of that scheme provided, at no extra cost, for a maternity allowance for at least 16 weeks around the date of delivery.

On 1 August 2004, the Netherlands passed legislation which denied self-employed persons access to that scheme, because it considered that the spirit of independent entrepreneurship entailed the acceptance of the risk of loss of income, which could be more appropriately covered by the private sector. By 2008 this reasoning had fallen out of favour in respect of maternity benefits, and the aptly-entitled Act on Benefits in respect of Pregnancies and Delivery for Self-Employed Persons restored them.

For those who gave birth between 1 August 2004 and 4 June 2008, only the private sector provided insurance for loss of income associated with maternity leave. Nearly all of those insurance contracts included a two year qualifying period before maternity leave benefits could be claimed.

Five of the six applicants decided not to take out private insurance, either because of the high premiums required or because of the two year qualifying period. One applicant did take out insurance but was (at least initially) denied maternity benefits on account of the qualifying period.

The applicants argued that the repeal of the mandatory public incapacity insurance scheme left them with no protection against loss of income on account of maternity leave, and that this amounted to a violation of the Netherlands’ obligation in article 11(2)(b) of CEDAW to “take appropriate measures … [t]o introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances”. They accordingly asked the Committee to recommend that the Netherlands compensate them for the disadvantage they had suffered.

In response, the Netherlands argued:

that the provisions of CEDAW concerning maternity leave applied only in respect of women in paid employment, and not self-employed women;

that when taking “appropriate measures” to introduce a maternity leave scheme, those measures may involve a public scheme or be left entirely in the hands of the private sector; and

that the fact that the authors found the private sector conditions (including the two year qualifying period) less attractive than a public scheme did not mean that the authorities had failed to make an adequate provision of maternity leave.

Decision

The Committee affirmed that the obligations in article 11 are directly binding on states and not merely aspirational, and that a failure to provide maternity leave benefits would amount to “direct sex and gender-based discrimination against women.”

After making short shrift of the Netherlands’ argument that the maternity leave provisions do not apply to self-employed women, the Committee concluded that, “by abolishing the initially existing public maternity leave scheme without putting in place an adequate alternative maternity leave scheme to cover loss of income during maternity leave immediate available to the self-employed [applicants] when they gave birth, the State party failed in its duties under article 11(2)(b) of the Convention.”

It accordingly recommended that the Netherlands provide the complainants with “appropriate monetary compensation”, because the 2004 reforms “did negatively affect the authors’ maternity leave benefits … if compared with those existing under the previous public coverage scheme.”

Commentary

Unfortunately the Committee’s conclusion raises more questions than it answers.

Minimum Standard of Maternity Leave & Compensation

The Committee leaves unaddressed the question of what an adequate alternative maternity leave scheme is, finding merely that as the complainants had been left with no alternative options, there had been a breach.

What then is the appropriate level of compensation? Is it fixed by reference to the previous public coverage, or to the minimum requirements of article 11(2)? The complainants sought an amount in accordance with the public scheme prior to 2004. The Netherlands had argued, however, that the private sector approach was sufficient, and received no real explanation of why it wasn’t. The Committee essentially leaves the calculation of compensation to the Netherlands, with very little guidance.

Use of Private Sector

Given the Netherlands had argued that leaving the provision of maternity benefits in the hands of the private sector was an acceptable way of meeting its obligations, does the Committee’s conclusion here suggest that the private sector approach is not an ‘adequate alternative’? The Committee’s reasoning is not entirely clear. If the Government had implemented transitory measures to move self-employed women to private insurance, or if the private sector had offered insurance without the qualifying period, would there then have been no breach?

The Committee did not directly criticise the use of the private sector, and thus it is possible that that approach can suffice. However, the words of article 11(2)(b) indicate that the obligation falls on the state to “take appropriate measures … [t]o introduce maternity leave with pay or with comparable social benefits.” If the private sector approach is appropriate, then the scope of article 11(2)(b) and the “appropriate measures” required to be taken by the state may actually be incredibly limited.

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